“Hey, that kinda’ looks like mine?” : How to Identify and Takedown a Copyright or Trademark Infringement

If you’re just looking for information on how to do a DMCA takedown please scroll to the last section of this article. PhishFort is not a law firm and does not purport to offer legal advice of any kind.

Having your content copied is not only frustrating, it can also damage your brand.  But how can you tell for sure that someone has infringed on your copyright?  And what can you do about it?  In this blog post we’ll help you determine whether your rights have been infringed and provide you with a brief guide on the next steps to take.

Copyright vs. Trademark

The first thing to determine is whether we’re dealing with a copyright infringement or trademark infringement.  Often people assume that if any content has been copied it must be a copyright infringement. This is not the case. Copyright and trademark infringements are distinctly different and follow different procedures for resolution.

Copyright is best understood as the original works created by the copyright owner.  These include artistic, musical, literary, dramatic, or other intellectual works, for example, an online product or source code. Copyrighted works don’t have to have a registered copyright in order to be protected.  The copyright is formed upon creation.

Trademark, on the other hand, is the fingerprint of your company.  It is quintessential to identifying your company’s brand.  Trademark’s include logos, slogans, words, names, symbols, colours or sounds.  These are things that distinguish your goods and services from others in the market, and which signal the source of the goods. For example, the Golden Arches are a brand defining feature for McDonald’s fast food globally:

Copyright covers a much broader spectrum of work than a trademark, but that doesn’t mean that all copied works would fall under a copyright infringement.  For example, a number of our clients have come across websites offering a different product but the website looks and feels like our client’s site, despite not being exactly identical. Unfortunately, “look and feel”  of a website is generally not protected by copyright.  However, the source code of a website (including HTML) could be considered a “literary work” and be copyright protected, provided there is something unique or distinctive about it, or it contains sufficient creative expression.  In other words, your run-of-the-mill HTML which is readily available may not be categorised as copyrightable.

Sometimes Copying is Okay

Because we live in a world where everyone is working hard to make ends meet, there are instances when alleged copyright or trademark infringements will be allowed.

The principles of Fair Use provide allowance for copyrighted works to be copied.  When contemplating whether a copied work should be considered Fair Use, the following four factors must be considered:

1. The purpose and character of the use:  Does the infringer add new expression or meaning to the original work? If so, then the work is not a complete replica of the original.
2. The nature of the copyrighted material:  Is the original material primarily factual?  If so, then copying is likely to be allowed.
3. The amount and substantiality of the copied portion:  Did the infringer borrow a large portion of the original work?  Or did the portion copied go to the heart of the original work?  If not, then the copy will most likely be allowed.
4. The effect of the copied work on the value or market of the original:  Does the copied work impact the copyright owner’s ability to profit from the original?  If not, then the copied work may be allowed.
   

When it comes to alleged trademark infringements, it is generally accepted that no trademark infringement exists if the underlying services or products of the two parties do not compete and are distributed in different locations or trade channels.  Therefore, if you’re trying to prove a trademark infringement it’s important to show that there’s a strong likelihood of confusion between your product or service and the infringing party.

How to Combat a Copyright or Trademark Infringement

Option 1: Do it Yourself Guide

Now that you’ve determined whether or not your online material is being infringed on, you’ll want to get the infringing content taken off the internet. But how?

The first thing to figure out is who is hosting it and where in the world the hosting provider is located.  The jurisdiction of the hosting provider will determine the applicable legislation and process to be followed.

The Digital Millennium Copyright Act or DMCA is the most commonly spoken about piece of legislation when it comes to addressing a copyright infringement.  The DMCA is a piece of United States legislation which, among other things, sets out a useful and standardised notification process.  The process allows copyright owners to notify infringers and site host providers to have the copied works removed from the internet.  Despite only being enforceable against sites and entities hosted in the USA, the DMCA guidelines are clear and could be easily applied when dealing with hosting providers in other countries.

Firstly, the notice must be in writing and must include a signature or e-signature. It must set out the location of the infringing content as well as evidence of the original material. There must be a declaration of “good faith”  as well as a confirmation that all the information in the notice is correct.  The notice must also contain a statement that “under penalty of perjury”  the person submitting the notice is authorised to act as either the owner or the owner’s agent. It’s also important to include all contact information so that the hosting provider or agent can provide any feedback.

Trademark infringements are not covered by the DMCA and therefore don’t follow the same notification procedure. However, most sites or hosts set out a trademark policy and reporting procedure which can be followed to have an infringing site taken down.  The process varies depending on the provider, but most hosting providers require some evidence that the trademark has been registered or that an effort has been made to seek a more formal legal process to remedy the infringement.

Option 2: Work with an Expert

The takedown process for copyright and trademark infringement can become a time consuming and tedious process. If you think your trademark or copyright is being infringed upon and you’d prefer an expert to handle this for you, you could hire a lawyer or our PhishFort Takedown Service can assist you. PhishFort has a team of analysts and legal experts who are poised to help you protect your brand - without the exorbitant fees of a law firm. Reach out to us via our online takedown form. If we can’t get the infringing website taken down, we’ll give you 100% of your money back, guaranteed!